Clark v. Chicago, R. I. & P. Ry. Co

Decision Date07 December 1927
Docket NumberNo. 26361.,26361.
Citation300 S.W. 758
CourtMissouri Supreme Court
PartiesCLARK v. CHICAGO, R. I. & P. RY. CO.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Joseph I. Clark against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

J. E. Addington, of Topeka. Kan., and Hogsett & Boyle, of Kansas City, for respondent.

GRAVES, P. J.

Action for personal injuries, bottomed upon the alleged violation of the Federal Safety Appliance Act (45 USCA § 1 et seq.; U. S. Comp. St. § 8605 et seq.). The issues, however, for our determination, have been much simplified by admissions made by learned counsel for appellant. Plaintiff was the head brakeman on his train, and his position when train was moving, was upon the engine. He was required to inspect, at each stop, the running gear under the cars, for hot boxes,. trouble in the brake rigging, and such things about the under equipment of the car. The rear brakeman had a like duty, and it appears that they would leave their respective places (when the train stopped) and inspect one side, and, when they met in or about the middle of the train, they crossed over, and the head brakeman returned toward the engine (inspecting as he went along) and the rear brakeman returned to the other end of the train doing the same. Counsel for appellant, in their statement say:

"The plaintiff was injured on the evening of September 11, 1922, at the town of Colby. Kan. He was in the employ of defendant, and was working as head brakeman on defendant's extra freight train west bound. Plaintiff's run was from Phillipsburg, Kan., to Goodland, Kan. The train, however, was carrying interstate shipments. It had stopped at the station of Colby for water, and plaintiff, according to the regular custom, had been back along the train making a running inspection and had gotten back to a point at or near the water tank when the engine finished taking water and the train was ready to go.

"Pursuant to a signal initiated by the conductor and passed on to the enginemen by plaintiff, the engine started up. Plaintiff, whose position on the train was on the engine, swung on the ladder on his side of the first car back of the tender, intending, as he said, to climb to the top of the car and then make his way over the top to the tender and thence to the engine. When he had climbed to the top of the ladder, he reached above the ladder to a handhold on top of the car at the edge immediately above the ladder, and when he put his weight upon the handhold the running board of the car to which it was attached swung out, and he fell to the ground.

"The petition charged that the handhold was insecure and defective in violation of the Safety Appliance Act, that plaintiff was caused to fall and was injured thereby, and that plaintiff and defendant at the time were employed and engaged in interstate commerce. Defendant's answer was a general denial, coupled with a plea of assumption of risk and also the allegation that plaintiff's injuries caused by his own negligence. Plaintiff replied, denying the allegations of the answer.

"It stands admitted that the car in question was moving in interstate commerce. It was established without dispute that the handhold was insecure."

Later in the printed argument counsel say:

"We of course concede that it is negligence per se for a railroad to operate a car that has a defective handhold. We also concede that it was established that the handhold was defective. We further concede that the evidence was sufficient to take to the jury the question of whether the defective condition was the proximate cause of the injury. We insist, however, that it was necessary, in an instruction authorizing a verdict, to require the jury to find that the maintenance of the defective handhold was the proximate cause."

These concessions cut out the things that are usually hotly contested in cases of this character. 'Upon trial before a jury, plaintiff had a verdict (signed by nine jurors) for $25,000. The trial court, upon the hearing of the motion for new trial, required a remittitur of $10,000, and, such remittitur being entered, the motion for new trial was overruled, and Judgment entered for $15,000. From this judgment comes this appeal.

The assignment of errors shows just what questions the appellant's counsel consider to he in the case, after concessions and admissions aforesaid. These assignments are short and pointed, and we quote them in full, as follows:

"(1) The court erred in giving plaintiff's instruction I.

"(2) The court erred in giving of its own motion instruction II, which was a modification of plaintiff's requested instruction II.

"(3) The court erred in giving of its own motion instruction III, which was a modification of plaintiff's requested instruction III.

"(4) The verdict was excessive.

"(5) The verdict was so excessive as to show passion and prejudice on the part of the jury.

"(6) The damages after the remittitur required by the court are excessive.

"(7) The court erred in refusing to grant a new trial because the verdict was excessive.

"(8) The court erred in refusing to grant a new trial."

Going to "Points and Authorities," we and the following, which is not mentioned in the assignments we have quoted supra:

"(b) Instruction V was erroneous in authorizing the jury to award plaintiff damages for loss of future earnings without limiting such award to the then `present cash value' thereof."

Instruction V is not mentioned in the formal assignments of error. But, even considering that instruction V is properly assigned as error, the only issues for consideration are as to instructions I, II, and V, given for plaintiff and the excessiveness of the verdict and of the judgment after remittitur. The court refused plaintiffs' instructions II and III as asked, and modified them and gave them. This fully appears In assignments 2 and 3 supra. No contention that plaintiff did not make a case for the jury. This outlines the case, and pertinent evidence bearing upon the contentions will be noted in the course of the opinion.

I. Instruction I for the plaintiff is the subject of the first complaint made by appellant. This complaint can best be gathered from what appellant says about the instruction, because there are admissions as to the instruction and its meaning and effect which will shorten our inquiry. First learned counsel for defendant say:

"I. The court erred in the giving of instructions.

"(a) Instruction I was erroneous in that it failed to require the jury to find that the defective handhold and its maintenance in a defective condition was the proximate cause of plaintiff's injury. Instructions II and III were erroneous, in that they excluded from the consideration of the jury knowledge of plaintiff of the defective condition and negligence and recklessness on his part in using the handhold with such knowledge. The evidence was sufficient to warrant the jury in finding negligence and recklessness of plaintiff in using the handhold in question was the sole proximate cause of his injury. Rittenhouse v. St. Louis S. F. R. Co., 299 Mo. loc. cit. 211, 252 S. W. 945; Lang v. New York Cent. R. Co., 255 U. S. 455, 41 S. Ct. 381, 65 L. Ed. 729; St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265, 33 S. Ct. 858, 57 L. Ed. 1179; Flack v. Atchison, T. & I. F. R. Co., 285 Mo. loc. cit. 49, 224 S. W. 415; St. Louis, I. M. & S. R. Co. v. Conarty, 238 U. S. 243, 35 S. Ct. 785, 59 L. Ed. 1290; Phillips v. Pennsylvania R. Co. (C. C. A.) 283 F. 382; Great Northern R. Co. v. Wiles, 240 U. S. 444, 36 S. Ct. 406, 60 L. Ed. 732; Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33, 69 L. Ed. 212; Frese v. Chicago, B. & Q. R. Co., 290 Mo. 501, 235 S. W. 97, affirmed 263 U. S. 1, 44 S. Ct. 1, 68 L. Ed. 131; McCalmont v. Pennsylvania R. Co. (C. C. A.) 283 F. loc. cit. 741; Poliakoff v. Express Co., 115 S. C. 350, 105 S. E. loc. cit. 749; Caldine v. Unadilla Valley R. Co., 218 App. Div. 5, 217 N. Y. S. 705; Rowe v. Chesapeake & O. R. Co., 215 Ky. 525, 286 S. W. 784; Ft. Worth & D. C. R. Co. v. Smithers (Tex. Civ. App.) 249 S. W. 286.

"(b) Instruction V was erroneous in authorizing the jury to award plaintiff damages for loss of future earnings without limiting such award to the then `present cash value' thereof."

In the course of the printed argument counsel attempt to make clear just what they contend is wrong with instruction I. They say:

"The point we make about instruction I is that it authorized a verdict for plaintiff without requiring the jury to find that the defective handhold was the proximate cause of plaintiff's injury. The point we make about both instructions II and III is that they authorized the jury to disregard plaintiff's knowledge of the insufficiency of the handhold and negligence and particularly to disregard them in determining the question of whether plaintiffs injury was caused by a defective handhold or his own act and negligence.

"The questions presented as to instruction I and instructions II and III are similar and may well be treated together. Instruction I sufficiently required the jury to find that the handhold was defective. It also required the jury to find that plaintiff caught hold of it, and that by reason of its insecure condition it swung out, and by swinging out caused plaintiff to fall to the ground; that, as a direct result of the fall, he was injured. We insist that by these conditions the jury were not required to find that the defective condition caused the injury. To illustrate, the jury could very well find, and we believe could hardly fail to find, that the swinging out of the handhold when deceased had hold of it caused him to fall to the ground, and that his fall resulted in injury to him. There is still lathing, however,...

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